Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Wednesday, August 25, 2010

People v. Russell (Cal. Ct. App. - Aug. 23, 2010)

When does a burglary end?

You might think that question to be a purely academic one, or one with few consequences. But it's actually pretty important, for a variety of different reasons. Some of which I'll mention in a moment.

But back to the actual question. Let's take your common, run-of-the mill burglary. X enters a house to steal some stuff. No one's at home. He puts his ill-gotten booty in a pillowcase and leaves the house. Crime over?

My initial reaction would be: "Sure." Seems to me that once you're out of the house, you've fully completed the crime. Indeed, in a lot of ways, the crime might be viewed as "over" once X entered the home, since burglary's generally defined as an initial entry with the intent to commit a felony. But I'd still say, at least upon first glance, that the crime's not "over" until X leaves the house, even though it may be "complete" upon initial entry. Still, once X leaves the premises, it seems like he's done.

But let's think about this a bit more deeply. Suppose there is someone at home, and they see X stealing their stuff and chase X out of the building. Part of me wants to say: "Well, the crime's still 'in progress,' even after the occupants chase X outside." Sure, X is outside the house, but it seems like the chase is one big continuation of what started inside. I get that one might say that the chase is something different, not part of the robbery, but at least the two are connected, and to me, one might use that to argue that the crime's not "done" yet if you're still being chased.

A hypothetical that came to mind on this point was: Imagine that the owner chases X out of the house, and while on the front lawn, X pulls a gun out of his pocket, thinking that he'd shoot into the sky in an attempt to deter X from chasing him, but when pulling the trigger trips and ends up accidentally shooting the owner in the head, killing him. To me, that might indeed be felony first-degree murder "during" the burglary, notwithstanding the fact that it's in the front lawn, outside the house. It's pretty darn connected.

So my second-level reaction is to think: "Okay, it probably doesn't end at the doorstep, and I can imagine some examples of a 'continuing' burglary when even outside events would qualify."

But then I think of troubling counterarguments. Imagine that there's no one home, X leaves the house with the stuff, and while he's walking the block to his awaiting getaway car, he spots a gun lying on the sidewalk. X thinks: "This is a high-crime area, where someone might try to mug me, plus, I can always sell the gun for cash," so puts it in his pocket and drives home. A statute says you get an extra five years if you possess a gun "during" a felony. Seems to me that it's not at all fair to give X the extra bones. The crime was "done". He wasn't being chased. The gun was fortuitous. After all, a robber who picks up a gun the day after a crime doesn't get the extra five. Why should X?

Plus, what about this: X drives from his home in San Diego to Las Vegas, and while he's there, he commits a burglary, and promptly thereafter drives back home to San Diego with his swag. My gut says the crime was "finished" in Vegas, so that's the proper venue for the crime. But if we nonetheless say the crime's not "over" until X gets safely back home, then it seems to me that X can permissibly be charged in California for a crime that occurred in Nevada, since the crime was in "both" places. Which seems silly.

What about statutes of limitation? Let's say Harrison Ford commits a burglary, which Tommy Lee Jones sees, and is thereafter constantly on Harrison Ford's trail for two-plus years. Does the limitations period really not commence until two years after the actual burglary, on the theory that the crime is "continuing" throughout? And if Harrison Ford runs in all fifty states, does the prosecutor really have the choice of fifty-plus jurisdictions in which to commence a prosecution?

All of these seem troubling. And push me to go back to a simple, bright-line rule that says that the crime is over when X leaves the house. Maybe with a "active chasing" exception, though I'm not entirely positive about that given the seemingly absurd consequences described above that might follow from such a holding.

But then I read this case. Which seems at least as troubling -- and perhaps more so -- than even my crazy law school professor hypotheticals.

Here's a case where X does get away with it, and there's no active chase, but X erroneously thinks there might a chase. Basically, X -- who's name here is Karl Russell -- burglarizes a home in Oceanside at 4:30 a.m., and then leaves the scene (with the stuff) in his car. No one's home and no one follows Russell, so he's totally safe. But while Russell's driving home, at a red light in Carlsbad (several miles away), Russell sees an officer driving a car in a nearby parking lot. And Russell freaks out. The officer has no idea there's been a burglary, but Russell nonetheless hits the accelerator and runs the red light, which prompts a chase, and one that ends up killing a guy in a pickup truck.

Again, the officer had no idea Russell had committed a crime. Moreover, the police didn't even connect Russell to the burglary until well after they picked him up for killing the guy in the truck.

Now, Russell's clearly potentially guilty of second degree murder. But is he also guilty of first degree murder on the theory that the death was "during" the burglary.

I think there's just a freakishly strong case that if you've actually gotten away with a crime, whatever "active chase" exception we might sometimes want to graft -- and even there I'm not entirely certain about it -- onto the otherwise bright-line "burglary ends at the door" principle doesn't apply. The crime is objectively finished. Even if you subjectively aren't aware of it. The subsequent events are not "during" the commission of the crime.

If you think otherwise, what about Burglar Y, who commits a burglary but who is also the most paranoid person in the universe, and who thinks for the rest of his life that the police are hot on his trail for the burglary. That crime lasts for 60 years and infinite venues? Come on. Can't be.

The California Court of Appeal, however, goes the other way. The opinion by Justice Huffman says that, yep, Russell can be convicted of felony murder because the crash was "during" the burglary. Justice McIntyre writes a brief (two double-spaced pages) dissent, but gets outvoted.

It seems to me that the majority opinion runs into a bunch of doctrinal troubles. And I wonder if the Court of Appeal would really say the same thing with respect to venue, statute of limitations, possession enhancements, etc., all of which arise from identical statutory language, but in which the absurdity of the resulting consequences seems readily apparent. Plus, all of this is entirely without reference to principles like the rule of lenity, etc. that are supposed to augur in favor of interpreting ambiguous statutory language in favor of the criminal defendant, rather than in a manner that would expand criminal liability. Finally, it struck me as odd that the opinion here repeatedly gives deference to what the jury "must" have implicitly found about the facts, which I agree is appropriate given the relevant standard of review, but not once in the relevant section talks about the fact that the facts have to establish that the death occurred "during" the burglary beyond a reasonable doubt. That seems somewhat relevant to me.

However one might expand the definition of burglary, I'm a bit troubled by expansive holdings that decide, as here, that a burglary isn't over even miles away and even when it's undisputed that no one's chasing or actively pursuing the burglar -- or even knows that a burglary's been committed. Post hoc escalation of a second- into a first-degree murder charge just because we come to find out that you were returning from the scene of a crime just seems aggressive to me, and not really consistent with the core elements of a burglary. And makes me dubious about my initial departure from the bright-line rule that a burglary ends at the doorstep.

If any other non-bright-line rule is subject to as broad of an interpretation as this one, is making the exception really worth it in the first place? I just don't know.